I dissent from the holding of the majority in this case. By the opinion, the losing appellee, by filing an affidavit of poverty, as set forth in section 663, Code of 1930, thereby obtains the order of this Court requiring the clerk thereof to send down the mandate without the payment of the cost as provided in section 3406. The applicable *Page 241 part of this section is the same as section 1442 of the Code of 1880. When construing that section, this Court said in the case of Mobile Ohio Railroad Co. v. Watly, 69 Miss. 475, 12 So. 558: "The judgments of this court affirming or reversing a judgment or decree appealed from are final in the sense in which the term is used in section 1442 of the Code of 1880, and the payment of the costs accrued in this court, and all costs for which the clerk of this court may issue execution, is a condition precedent to theright to demand of him the certification of the affirmance orreversal to the court below. The jurisdiction of this court isentirely appellate." (Italics ours.)
When sections 655, 656, 658, and 663, are read and construed together, it is patent that the Legislature has not to this date enacted a statute permitting a losing party to file an affidavit of poverty in the Supreme Court of the State, and thereby evade the positive mandate of section 3406, Code of 1930. In the Watly case, supra, no exception was made. The statute was construed as positive and certain, with no exceptions thereto. Since that decision, this statute has been re-enacted several times. There has never been an effort on the part of the Legislature to provide for poor persons to sue without security for costs, except in trial courts, as demonstrated by the sections to which we have referred. In the case at bar, the alleged poor person, who now files his affidavit of poverty in this Court, forced the appellant to appeal to this Court in order that a judgment wrongfully rendered might be vacated. He followed this appeal and undertook to enforce the invalid judgment in the face of the decisions of this Court, and so far as costs are concerned, the judgment was final.
It is my conception of the sections quoted above, and especially section 663, that the provisions made are for a poor person to have the benefit of a trial in the various trial courts of this state, and if he undertakes to avail of the process of this Court, he must comply with the *Page 242 statute relative to costs applicable to cases disposed of in this Court.
Although section 3406, or its equivalent, has been on our statute books for nearly sixty years, no such procedure has ever been attempted, save in one instance hereinafter referred to. Our records show that in 1933, in the case of Willie G. DuBois v. R. Thomas, No. 27,833, the losing appellee in this Court filed a motion to suspend Rule 29, and in connection therewith a pauper's affidavit contended that such procedure was permissible in the Supreme Court. The case was fully briefed and the motion was by this Court overruled without written opinion. In that case, the movant had recovered a decree for $253,000 which had been four years before reversed by this Court. The appellant, Mrs. DuBois, secured the reversal on a question of the admission of evidence and the case was remanded for another trial. The appellee, Thomas, could not be made to pay the costs. Mrs. DuBois thereafter paid the costs, and upon the pauper's affidavit, this Court declined to order the mandate sent down to the lower court. The decision on this motion was handed down on June 12, 1933, by Chief Justice Smith. The briefs did not fail to present the argument now adopted as to section 24 of the Constitution of 1890, and I think is authority in this Court under the circumstances. If and when the Legislature provides that an affidavit of poverty may be filed in the Supreme Court in order to have the mandate go down to the lower court, and the machinery is provided for determining whether the party so making the affidavit is entitled so to do, will be time enough for this Court to enforce such a rule.
I am of the opinion that the motion should be overruled. *Page 243